The learned Counsel for the Respondents submit relying on PAM v. GWOM (supra) that the instant grounds 2, 3, and 6 are on all fours with the grounds of Appeal adjudged competent in PAM v. GWOM (supra), and further, and I agree that proof of ownership of land in accordance with the principles of customary law is an incidence of customary law. Any ground of Appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is Appealable "as of right" under Section 245(1) of the Constitution
OZOEMENA & ANOR V. NWOKORO &
The trial Court relied on the evidence of traditional history on which the Appellants predicate their claim to the title they assert against the 1st-3rd Respondents, who also situate their title on inheritance and devolution from the original founder of the Akinbade. The case therefore rests on competing traditional histories. The principle of law developed as regards competing traditional histories is: the best way to determine which of the traditional histories is more probable is to test them by reference to the facts and/or events in the recent years established by evidence. MORENIKEJI v. ADEGBOSIN (2003) 4 SC (Pt. 1) 107; (2009) 8 NWLR (Pt. 823) 612; KOJO II v. BONSIE & ANOR. (1957) l WLR 1223 at 1227; ADENLE v. OYEGBADE (1967) NMLR 136.
It is extremely important that custom should be strictly proved. Though such proof is not by the number of witnesses called, it is not enough that one who asserts the custom should be the only witness. Another witness who is versed in the alleged custom should also testify. This is as pronounced by this court in the cases of the Queen v. Chief Ozogula (1962) WNLR 136; Adeyemi & Ors. V. Alhaji Shitu Bamidele & Ors. (1968) 1 All NLR 31.
It is a fundamental principle of law that where a party intends to set up and rely upon native law and custom, the custom alleged must be specifically pleaded.
Native law and custom are matters of evidence to be decided on the fact presented before the court in any particular case, unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required to proof. See Giwa v. Erinmilokun (1961) 1 All NLR (pt.2) 294..
There is, however, the other question whether the nature of interest conferred on a Kola tenant is an interest of inheritance. Being an interest in a customary tenancy, the question whether such interest is inheritable and in what particular way or by which particular person must depend on the particular custom governing the Kola tenancy; and this generally is a matter of evidence [see also Kamanda Bongay v Macaulay (1932 1 W.A.C.A. 225 a case dealing with right of inheritance and forfeiture of land in Sierra Leone in which the holder had mere usufructuary right for the period of his life time]. It is, therefore, difficult to say that, co ipso, a customary tenancy is an interest of inheritance.
Kola tenancy in the main has the features of most customary tenancies; it creates a landlord and tenant relationship between the parties to it, and it certainly is more than a mere occupational licence which confers no interest in land. Like most customary tenancies, Kola tenancy, confers to the grantee full rights of possession but it confers no more than a mere possessory right i.e. a right of occupation of the tenant. This is borne out in the definition of this type of tenancy as set out in section 2 of the Kola Tenancies Act No 25 of 1935 (now appearing as the Kola Tenancies Law Cap. 69 in the 1968 edition of the Laws of Eastern Nigeria) which reads:
"a right to the use and occupation of any land which is enjoyed by any native in virtue of a Kola or other token payment made by such native or any predecessor-in-title in virtue of a grant for which no payment in money or in kind was exacted." Obviously, from the above definition (i.e. Statutory and under Customary law) the position is that once it is admitted that property (or a parcel of land) is held under a Kola tenancy, the one thing which the holder cannot do under customary law is absolute or entire alienation of the same. [see also Foster-Sutton F.C.J. in Daniel v. Daniel 1 F.S.C. 50 at 51].
In every litigation in the High Court where tenets of customary law and Statutes are applied, native law must be proved. Merely asserting that 'it is under native law and custom" is not prima facie the native law and custom.
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Ogunleye v Oni, LGC(27/4/1990) T
The question may be asked: what is the male line? Trying their hands on the definition, the learned Justices of the Court below, relying on the definition given in Stroud’s Judicial Dictionary, (5th Edition) Vol. 3 page 1113, they held as follows on page 623 of the record:- “I most respectfully stand by the true prima facie meaning of the phrase “Male line” given by Stroud’s Judicial Dictionary (Fifth Edition) Vol. 3 page 1513 – “Male line… Properly means a line commencing with a male and continued through males.” (my emphasis): -PER JOHN INYANG OKORO, J.S.C.
It is evident that in the appeal at hand, the deceased was not ready to divest herself of dominion and control. This made her gift to be invalid as the most important condition in such a gift is delivery of possession. Possession which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest herself completely of all ownership and dominion over the subject matter of the gift. See BAKSH Vs. BIBI, A.I.R. 15 CAL. 684; BASIT Vs. MIAN (1973) A.I.R.
DELHI, 280 at 283. It is a fundamental rule of Sharia as regards gifts that the donor should divest herself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. A gift with a reservation of possession by the donor during his/her life was held to be void. See KHAN Vs. KHAN (1927) A.I.R. P.C. 97 at Page 98. PER DANJUMA, J.C.A.